Martin v. State

79 Ala. 267 | Ala. | 1885

SOMERY1LLE, J.

The question raised by the rulings of the Circuit Court is, whether the prosecution was barred by the statute of limitations. The offense charged was'a misdemeanor, — the carrying of a pistol concealed about the person of the defendant. It is shown to have been committed on the first day of June, 1883. The indictment was found on November the twelfth, 1884. It is obvious, therefore, that the bar was complete by reason of the lapse of more than twelve months since the commission of the offense, unless the proceedings before the justice operate to take the prosecution out of the operation of the statute. — Code, 1876, § 4644.

The section of the Code relied on to accomplish this result is section 4646, which provides, that “ a prosecution may be commenced, within the meaning of this chapter, by the issue of a warrant, or by binding over the offender.”

We are of the opinion, that this statute contemplates that there must be some connection between the prosecution before the justice, and the one in the Circuit Court, before the former can operate to suspend the running of the statute. The indictment, in other words, must be the continuance, in legal effect, of what was commenced or originated before the justice. One legal proceeding can in no sense be said to be the commencement of another, when the two are so far separate and distinct as to be entirely without continuity or connection.

We see no such connection in the present case. The prosecution commenced before the magistrate, on the sixteenth of July, 1883, by the arrest of the defendant under a warrant, seems to have terminated in that court, by the failure of the defendant to appear, resulting in a forfeiture of his bond, which-was an obligation to appear at a time stated before the magistrate. It was the magistrate’s duty to issue an alias warrant for the re-arrest of the defendant, and in this way to have continued the prosecution. — Code, 1876, § 4676. Certifying the default on the undertaking of bail, and returning this to the Circuit- Court, was designed merely to inaugurate a civil suit in that court against the obligor and his sureties on the bond.- — Code, 1876, § 4676.

Where the offense is one within the final jurisdiction of the magistrate, the prosecution is required to be commenced within sixty days next after the commsssion of the offense. — Code, § 4Ó45. In such a case, the issue of the warrant is the commencement of the prosecution. — Code, 1886’, § 4646, supra. Where the offense is one within the jurisdiction of the Circuit Court, and is not within the final cognizance of the magistrate, there must -be a binding over of the defendant, resulting in a continuance of the prosecution in that court by indictment. Molett v. The State, 33 Ala. 408; Foster v. The State, 38 Ala. 425.

The rulings of the Circuit Court were opposed to this view of the law. The judgment is reversed, and a judgment will be entered in this court, discharging the defendant from further custody.